Delhi Ordinance Row: The deadlock continues over the central government’s ordinance on transfers and appointments of officers in Delhi. The central government on Friday issued an ordinance with the aim of setting up the National Capital Public Service Authority for the transfer of Group-A officers and disciplinary action against them. Delhi’s Aam Aadmi Party (AAP) government has termed the Centre’s ordinance as an attack on the judiciary and the Constitution.
A week before the Centre’s ordinance, the Supreme Court had handed over the control of services related to police, public service and land to the elected government of Delhi. The AAP government termed this ordinance as an attack on democracy and judiciary. Five reasons have also been given.
Violation of the principles of federalism- The Supreme Court in its judgment of May 11 had said that federalism ensures representation of diverse interests in a country like India. It is also a part of the basic structure of the constitution which cannot be amended by the Parliament. However, the new ordinance substantially limits the powers of the NCT government, which are guaranteed under the Constitution.
Under Article 239AA of the Constitution, the Delhi government has legislative and executive powers over the services, which is Entry 41 of the State List. The Centre’s ordinance takes away the Delhi Assembly’s power to legislate on services matters and ends the executive control of the Delhi government. Experts agree that the Ordinance is contrary to clause (3)(a) of Article 239AA. The central government cannot take away the power of the Delhi Assembly to make laws on services, which is guaranteed by the Constitution.
Contempt of Supreme Court’s decision- The ordinance seeks to nullify the unanimous decision of a five-judge constitution bench of the Supreme Court on May 11, 2023. However, the central government/parliament cannot change the effect of the court’s decision through an ordinance or even a law. The basis of the decision is Article 239AA. By promulgating an Ordinance that violates this Article, the Central Government has also violated the Supreme Court’s judgment of July 14, 2021 in Madras Bar Association v. Union of India.
Questions on the responsibility and accountability of officials- Taking a practical approach in its judgement, the Supreme Court, while referring to the triple chain of accountability, said that the people elect the legislature through periodic elections. The government functions as long as it has the support of the legislature and the bureaucracy is to be held accountable for their actions on behalf of the Delhi government.
The court had said that if the officers stop reporting to the ministers or do not follow their instructions, then the principle of collective responsibility of the ministers will be affected. The ordinance practically prevents the Delhi government from exercising any control over the officers. This is a massive and illegal obstruction imposed by the Center to obstruct the functioning of the AAP-ruled Delhi government.
Against the interest of the people of Delhi and democracy- The ordinance is being seen as an insult to the democratic will of the people of Delhi. Through the elections, the people of Delhi have trusted the government of Chief Minister Arvind Kejriwal and it is the duty of the government to fulfill the trust of the people. The ordinance prevents the democratically elected government from fulfilling its development and welfare agenda. If administrative services are taken out of the purview of the Delhi government, the ministers will be prevented from controlling the civil servants who have to implement the decisions of the government.
Thus, the ordinance is antithetical to democracy itself. Experts agree that this is a virtual takeover of Delhi’s elected government by the Centre. This completely nullifies the mandate given by the people of Delhi to the Government of NCT.
A political conspiracy against the opposition- The ordinance is being seen as a reaction to the BJP’s recent defeat in several state assembly elections and the AAP government losing ground in judicial battles in Delhi . By bringing the ordinance, the Center wants to ensure that it has control over all projects being run by the elected Delhi government and can effectively stop them if needed. For the 2024 general elections, the ordinance is also being seen as a strategy to prevent the opposition from gaining momentum. In the coming year, it also has the potential to influence free and fair elections.
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